Sometimes it’s not as simple as asking your neighbour to make less noise. Many Malaysians grapple with bigger neighbourly disputes and daily nuisance such as unreasonable renovation works, open-air burnings and unruly pets. Currently, there is no specific law in Malaysia to address nuisance caused by neighbours – it is high time that we enact one.
In this day and age with the advent of technology, there is plenty of information, guides, articles, tools and checklists available online that can
help or assist one to shop for the one’s elusive and perfect dream home.
More often than not, one will be advised to conduct the necessary due diligence on the subject property and legal owner. However, one aspect
that is often neglected is to check the calibre of those living next door. In some cases, you would not even know who are your neighbours, especially when buying a property in the primary market (direct from a developer), and only come to suffer when you later find out your neighbour is a real pain.
Through no fault on your own, having a bad neighbour can take a huge toll on your life. From rowdy mid-week or wee-hours parties to dogs that bark incessantly, the neighbour’s cat’s faeces at your doorstep and the excesses of inconsiderate neighbours are among the most annoying aspects in a community living.
Malaysia’s current legal framework is ineffective
Legally speaking, the annoyance caused by your neighbour can be classified as nuisance, which is a branch or subset of the big tree of tort of
law. When confronted with such annoyance and after having exhausted all available diplomatic means and self-help remedies, such as having
a peaceful talk with the “hellish” neighbour, complaining to the local authority and lodging police report, but yet fail to yield the desired results at the end, then the last resort would be to take legal action in the courts of law.
However, many will know this is not economically viable in most instances as legal fees are expensive and the case would be time-consuming.
New law modelled after Singapore’s Community Disputes Resolution Act (CDRA)
By taking the cue from the Singapore CDRA, there are few salient features that our proposed new law should encompass, which we will discuss in the following headers:
Neighbour and Residential Properties
Our proposed new law should only confine to residential properties, similar to the Singapore CDRA (the phrase “place of residence” is used throughout the legislation). The well-known saying that a man’s home is his castle holds true. It is also instructive to note the word “neighbour” used in the Singapore CDRA, is a person who lives in the same building as you or lives within a 100-metre radius of your place of residence, but does not include a person who lives in the same place of residence as you.
Generally, in order to establish the tort of nuisance, one must prove that the act or omission of the neighbour has caused unreasonable interference with his or her enjoyment or use of the place of residence. For better illustrations, the Singapore CDRA lists down 10 examples of interference by the neighbour, namely:
1) Causing excessive noise, smell, smoke, light or vibration;
2) Littering at or in the vicinity of your place of residence;
3) Obstructing your place of residence;
4) Interfering with your movable property;
5) Conducting surveillance on you or your place of residence, where the surveillance is done at or in the vicinity of your place of residence;
6) Trespassing on your place of residence;
7) Allowing his animal to trespass on your place of residence, to cause excessive noise or smell, or to defecate or urinate at or in the vicinity
of your place of residence;
8) Verbally vulgar, abusive and intimidating nature;
9) Damaging common facilities and property; and
10) Causing mischief, distress and annoyance
These examples can serve as a guide, though not exhaustive, to shed light on the prospective complainant when he or she is contemplating to file a claim in the tribunal (to be discussed next) for the interference caused by his or her neighbour. It is important to note that whether or not a particular act tantamount to nuisance or unreasonable interference, it is ultimately up to the tribunal to decide to have regard to the facts and circumstances of each case.
Tribunal to serve as a Dispute Resolution Mechanism
Central to our proposed new law is the establishment of a quasi-court in the form of a tribunal, acting as an accessible and efficient platform for individuals to resolve their neighbour disputes. By having a special tribunal for handling neighbour disputes, this ought to expedite the resolution of such disputes, as the proceedings are less formal compared to the conventional courts of law, and more importantly, cost-efficient.
As with any other tribunal, only the party to the proceedings can present his or her own case, without representation by any lawyer, unless otherwise ordered by the tribunal.
This special tribunal should be given powers to grant orders which could typically be made by the conventional courts, such as damages, specific performance, injunction, etc. Perhaps, it may be a good idea to direct the parties involved to mandatorily attend mediation before the case is being heard by the judge, as mediation has a high success rate for a dispute of this nature.
It is foreseeable that there would be a limit on the monetary jurisdiction imposed on this special tribunal. In the Singapore CDRA, the maximum monetary order that its tribunal can grant is S$20,000. As such, more studies and research need to be carried out in establishing the monetary jurisdiction for this special tribunal.
Further, all checklists, prescribed forms and documents necessary for the filing of a claim, as well as clear guidelines, processes, list of registration fees and ‘frequently-ask-questions’, should be made available on its website, so as to render it accessible, more user-friendly and easily understood by the general public.
Just like the proposed Residential Tenancy Act, it is high time that our lawmakers should give our proposal a serious thought in order to put an end to the woes caused by the neighbours from hell. Perhaps, the proposed law governing neighbourly behaviours could be merged with the Residential Tenancy Act to be more wholesome.
However, as with any new enactment process, we should not just adopt the law from other countries blindly without taking into account of our very own social, culture and economy circumstances. There need to be robust discussions and in-depth studies by the relevant stakeholders before codifying this into law and thus figuratively speaking, turning our neighbourhood into a better place to live for our rakyat.
This article is jointly written by Pang Saw Pin, Esq, one of the Legal Advisors of HBA and Datuk Chang Kim Loong, the Hon. Sec-Gen of the National House Buyers Association (HBA), a voluntary non-government and not-for-profit Organisation manned wholly by volunteers.